Commentary on Article 172. Participation in Foreign Armed Conflicts of the Criminal Code of the Republic of Kazakhstan

Intentional unlawful participation by a citizen of the Republic of Kazakhstan in an armed conflict or hostilities on the territory of a foreign state, in the absence of elements of mercenarism, shall be punishable by imprisonment for a term of five to nine years.

Due to the absence of legal mechanisms for holding accountable persons who participated in hostilities abroad, criminal liability was introduced for citizens' participation in armed conflicts on the territory of a foreign state. This initiative was prompted by the recruitment of our citizens to Syria to participate in hostilities on the side of international terrorist organizations.

Previously, criminal cases were initiated by the country's law enforcement and special agencies against persons participating in armed conflicts or hostilities abroad on the grounds of the elements of the criminal offence of “Mercenarism” (Article 170 of the Criminal Code).

According to Article 47 of Additional Protocol I of 8 June 1977 to the Geneva Conventions of 12 August 1949, relating to the protection of victims of international armed conflicts, a mercenary is a person who joins an armed conflict not for ideological, national or political reasons, and not in accordance with military duty, but for personal material gain. Citizens of the Republic of Kazakhstan participate in armed conflicts abroad, as a rule, for religious and ideological reasons.

The public danger of this crime lies in the fact that Kazakhstanis, having acquired sabotage and terrorist experience, return to their homeland and begin attempting to organize “armed jihad”. A qualitative change takes place in the composition of religious extremist groups, and their networks expand, which requires the adoption of timely preventive measures.

The object of the crime is the social relations ensuring compliance with the principles of the legal regulation of armed conflicts.

The additional object is the political security of the Republic of Kazakhstan, expressed in the possible loss by Kazakhstan of its status as a neutral state and its involvement in an armed conflict.

The objective side is expressed in the unlawful participation of a citizen of the Republic of Kazakhstan in an armed conflict or hostilities on the territory of a foreign state.

Participation in an armed conflict is considered unlawful in the absence of authorization by the Republic of Kazakhstan for a citizen of the Republic of Kazakhstan to participate in an armed conflict on the territory of a foreign state, except in cases provided for by international treaties ratified by the Republic of Kazakhstan.

The unlawfulness of participation is evidenced by the absence of official documents confirming the person's authority to assist in the establishment of armed forces, train military personnel, provide troop training, maintain military equipment and weapons, and organize and conduct military operations by the armed forces of a state that is a party to the armed conflict.

According to Article 6 of Convention V respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 18 October 1907, private individuals may cross the border in order to enter the service of one of the belligerent states. From the standpoint of international law, the actions of a volunteer shall be considered lawful if he formally joins an army waging a just war in defence of his country against a foreign aggressor. The enlistment of a citizen of another state (a stateless person) in such an army does not violate the rules of the law of armed conflict. The status of a volunteer must be distinguished from that of mercenaries, who are guided by other motives. The absence of elements of mercenarism is a mandatory requirement (Article 170 of the Criminal Code).

Mercenaries do not include citizens of other states who officially perform military service under a contract in the armed forces or other structures of the military organization of a state, as well as citizens of a state who, with the knowledge of their state, officially serve under a military contract in the armed forces or other structures of the military organization of other states.

In addition, the mandatory elements of the objective side include the circumstances — an armed conflict or hostilities (see the commentary to Article 170 of the Criminal Code of the Republic of Kazakhstan) — and the place where the crime is committed — the territory of a foreign state.

State territory is territory that is under the sovereignty of a particular state, i.e. belongs to a particular state, which exercises its territorial supremacy within its boundaries. It comprises land and waters, the subsoil beneath them, and the airspace above the land and waters, the limits of which are determined by the state border.

Based on the content of Article 1 of the Law of the Republic of Kazakhstan “On the State Border of the Republic of Kazakhstan” dated 16 January 2013, the state border is a line and a vertical plane passing along that line, which define the limits of the territory of the state (land, waters, subsoil and airspace) and the spatial limits of the exercise of the state sovereignty of the Republic of Kazakhstan.

By its legal structure, the composition of the crime is formal. The crime is deemed completed from the moment a citizen of the Republic of Kazakhstan begins participating in an armed conflict or hostilities on the territory of a foreign state.

The subjective side is characterized by direct intent. The perpetrator is aware that he is participating in an armed conflict or hostilities on the territory of a foreign state and desires to do so.

The subject is special: a sane natural person who has attained the age of 16 and is a citizen of the Republic of Kazakhstan.

The act provided for in Article 172 of the Criminal Code is classified as a serious crime.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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